Same-sex marriage: Supreme Court constitutes 5-judge bench, to hear pleas from April 18

The decision to refer the petitions to a Constitution Bench was made on March 13 by a three-member bench led by CJI DY Chandrachud, alongside Justices PS Narasimha and JB Pardiwala. The bench called the issue a "very seminal" one, with an interplay between constitutional rights and special legislative enactments like the Special Marriage Act.

New Delhi: The Supreme Court of India has announced the composition of a 5-judge bench that will hear a set of petitions seeking legal recognition for same-sex marriage. The bench will consist of Chief Justice of India DY Chandrachud, Justice Sanjay Kishan Kaul, Justice Ravindra Bhat, Justice Hima Kohli, and Justice PS Narasimha. The hearings are scheduled to commence on April 18.

The decision to refer the petitions to a Constitution Bench was made on March 13 by a three-member bench led by CJI DY Chandrachud, alongside Justices PS Narasimha and JB Pardiwala. The bench called the issue a "very seminal" one, with an interplay between constitutional rights and special legislative enactments like the Special Marriage Act.

The bench stated that the matter was significant enough to be decided by a constitutional bench of five judges. Article 145(3) of the Constitution requires at least five judges to hear cases that involve "a substantial question of law as to the interpretation" of the Constitution or any reference under Article 143, which deals with the power of the President of India to consult the SC.

In addition to same-sex marriage, the bench will also consider issues related to the rights of transgender couples to marry. During the hearing, CJI Chandrachud said that the adopted child of a lesbian couple or a gay couple does not necessarily have to be homosexual. The government, represented by Solicitor General Tushar Mehta, has opposed the petitions, arguing that despite the decriminalisation of Section 377 of the Indian Penal Code, the petitioners cannot claim a fundamental right for same-sex marriage to be recognised under the laws of the country.

The government has also maintained that granting recognition to human relations is a legislative function and cannot be a subject of judicial adjudication. While homosexual couples currently do not have the right to legally marry in India, the 2018 Navtej Singh Johar verdict decriminalised consensual gay sex between adults and Section 377 of the IPC, which had considered sex with the same gender a criminal activity.

Currently, there are 32 countries globally where same-sex marriage is legal, including Taiwan, which was the first country in Asia to recognise such unions in 2019.